Police Overkill: The Shooting of Medical-Marijuana Dealer John Wheelihan
John Wheelihan, a photographer who sold medical marijuana without a license, was shot and killed by Tempe police in a 2013 raid.
If two unnamed Tempe police officers are to be believed, John Wheelihan pointed a scoped rifle at them just before they shot him three times at his home in 2013.
No matter that Wheelihan's weapon turned out to be a pellet gun: It might have looked deadly enough in the heat of the moment.
The bigger question is why Tempe and Arizona State University police felt the need to go all-out against a marijuana dealer who wasn't a threat to society. Wheelihan, who died from the gunshot wounds, was a professional photographer and state-licensed medical-marijuana caregiver who ran a weed-delivery service for patients in east Tempe. Family members say he's never been violent.
Tempe cops have yet to close out their report on the tragic incident, and still have supplemental reports to add. At New Times' request, the agency released the bulk of the report publicly for the first time last week.
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The report adds some details to a story that made headlines in 2013 but otherwise does little to explain why Wheelihan reportedly ignored police orders and challenged police with the rifle in an almost suicidal manner.
Details left out include the names of the two officers who shot Wheelihan. Despite Governor Doug Ducey's veto of a bill in March that would have allowed police departments to withhold the names of officers involved in shootings for two months, Tempe police spokeswoman Molly Enright says the department has no intention of releasing the names even though the incident occurred nearly two years ago.
Wheelihan, who was 44 when he died, earned a good living as a stock trader in Chicago in the late 1990s and 2000s. In 2010, he bought the home in a cul-de-sac in the 2100 block of East Cairo Street with his wife of 14 years. He'd hoped to support their two young boys with his professional photography work, but shooting pictures of sports teams and Hooters girls didn't pay the bills.
The timing of the Wheelihans' move coincides with the passage of Arizona's voter-approved Medical Marijuana Act, and both parents obtained state licenses not just as patients but as caregivers. Wheelihan had been busted for a cannabis violation in Chicago previously and may have come to Arizona for the medical-marijuana freedoms.
Wheelihan prepares to make hashish.
Wheelihan used a casita in his backyard to grow marijuana, to make hashish and to keep pounds of marijuana that he delivered to patients on his bicycle. The law allows caregivers to grow marijuana even in Tempe for patients who live 25 miles or further from a state dispensary, but Wheelihan advertised to and served mostly local, card-holding patients. He advertised blatantly on Facebook and other Internet sites.
The 2010 law approved by voters sets up a system of state-licensed dispensaries to sell marijuana to patients, and many believe it keeps so-called "patient-to-patient" sales illegal under Arizona's traditional, felony marijuana laws. Local police agencies, which have a financial incentive to prop up marijuana prohibition because of forfeiture laws, have taken the stance that patients can't sell marijuana to other patients. However, the judicial system has yet to weigh in on the matter.
Last July, about one year after Wheelihan was shot dead by police, Pima County Superior Court Judge Richard Fields tossed out the criminal case of a pot dealer who'd been advertising to Tucson patients on Craigslist, ruling that the law is so vague and poorly written that patient-to-patient sales are, in fact, legal. The Pima County Attorney's office appealed, and oral arguments are set in the appeals court on the case for May 13 in Tucson.
Tempe police don't share Judge Fields' uncertainty. Nor do Arizona State University police, which helped kick off the investigation against Wheelihan.
After receiving a complaint in 2013 that Wheelihan was advertising marijuana for sale, an ASU police detective and Tempe police officers tried to set him up.
The Tempe man primarily used two Facebook sites to promote his pot business: Cannabis Consultants of Tempe and "Ryan Epson." Police figured out that "Epson" was really Wheelihan; pictures and posts on both sites reportedly were identical. The Epson site, still extant on the web, shows various posts, pictures of marijuana (and of female fashion models with marijuana), and videos Wheelihan took of his grow room and hashish-making.
The police report suggests that the ASU detective called Wheelihan on July 22, 2013, and asked what he could get for $200. Wheelihan reportedly told him he would bring 24 grams of "sour diesel" to a parking lot at McClintock Drive and Broadway road. The detective soon received a phone call from Wheelihan, who told him he'd spotted two undercover police vehicles in the parking lot and was calling off the deal.
Wheelihan posted a blurb about the incident just before noon that day on Facebook. Here's the post, with Wheelihan's grammar un-corrected:
"So a random guy contacted me for legal MMJ today. He said he got my card from the farmers market. I have never been to a farmers market. So the guy sends me his card and I agree to meet him at the grow store thats at McClintock and Broadway. I roll up on my bicycle to check things out first and see a undercover hanging out in a gold chevy SUV. Then I see another unmarked squad circling around the side parking lot. I proceeded to leave the area as fast as I could. Coincident or set-up? Mother Fuckers have to be slicker than that if they want to get me. lol"
Wheelihan then told his Facebook audience he'd be taking on "no new patients," which would have put a damper in the cops' plans to nail him on a buy. His friends chimed in that he was "smart," and they mocked the cops.
"I just thought about how stupid that guy must feel that he got figured out lol. Undercover department: 0...Medicine provider: 1," wrote one friend.
"Lol, yep, be careful folks," Wheelihan replied. "They are def out there trying to get us small guys."
The police report notes that Wheelihan didn't return the detective's calls after the incident and mentions that he'd posted about it on Facebook.
We can't help but wonder: Did this snide Facebook post by Wheelihan make the investigation personal for ASU and Tempe police? We can see how cops might be a tad ticked off after something like that.
Police continued surveillance. On the morning of July 24, they observed a car with California plates pull up to the residence. Two people carrying a red duffle bag went inside, then soon left with the same duffle bag, the report says.
Police obtained a search warrant from County Court Commissioner Charles Donofrio III and prepared a team of officers for a SWAT-team-style "tactical response." Just before 4 p.m. that day, the heavily armed group of officers and sergeants, wearing black clothing and bullet-resistant vests emblazoned with the word "POLICE," took positions around the unassuming white-brick home.
One of the unnamed detectives who took part in the raid told an investigator he knew almost nothing about Wheelihan, but that the tactical response was used "because most of the time there are handguns, other firearms, and a potential for violence when serving narcotics warrants."
The detective confirmed the style of the raid was based on "prior experience" of serving similar search warrants.
The cops parked a Tempe squad car on Wheelihan's driveway, its red and blue lights flashing. They yelled through a PA system for anyone in the house to come out with their hands up and could see Wheelihan moving around inside through the windows. A flash-bang grenade was detonated to get Wheelihan's attention.
When Wheelihan failed to emerge, a smaller group of cops broke down the glass front door and charged inside. At roughly the same time, observers barked into the radio that Wheelihan had exited into the backyard — and was holding a rifle with a large scope.
The entry team quickly high-tailed it back out the front door. Police yelled at Wheelihan to drop the weapon. Nobody but the two officers who shot Wheelihan saw what happened next.
(Tempe PD is preparing to issue body cams to many of its officers in a test of the devices, but no video cameras caught what happened, either.)
One of the officers crouching behind a car could see Wheelihan through a gate. He fired twice, saying later say he saw Wheelihan point the rifle at him.
Wheelihan was hit at least once by a bullet and fell. But he retrieved his dropped rifle, got up, and headed for one of the backyard gates. The second unnamed officer, also standing outside the backyard, said he fired at least four shots after Wheelihan pointed the rifle at him.
A neighbor told police that about 30 seconds elapsed before each of these four shots.
Neighbors thought Wheelihan seemed to be an excellent father to his young kids.
Wheelihan's weapon turned out to be a pellet gun, as mentioned. A Glock 9-millimeter purchased by Wheelihan was later found in his bedroom; his wife told police she thought the pellet gun was the only weapon in the home.
Wheelihan was on the phone with his wife during the raid, she told police. She and the kids were in Illinois that day for a family visit; Wheelihan was supposed to have flown out to join them three days later.
"It's all over," he reportedly told her, adding that he was in the backyard and police were there. Then he hung up.
An autopsy later showed Wheelihan had been hit in the chest, hip and shoulder. He was treated by paramedics at the scene and taken to a hospital, but doctors couldn't save him.
A total of 11 pounds of marijuana and 25 grams of hashish were found in the home, along with equipment for growing pot and making concentrates like hash. Wheelihan had a sophisticated set-up in the casita, which wasn't accessible from the main house. He had more than 20 top-quality strains of marijuana in labeled jars. The couple's caregiver paperwork was located and verified as current by the state Department of Health Services.
Police learned that Wheelihan was well-liked by neighbors. One who considered Wheelihan a "strange cat" recalled the man telling him that he might smell marijuana coming from his home. The neighbor told Wheelihan he didn't care, he told cops.
The neighbor's attitude reflects the changing opinions about marijuana in the United States over the last few years. Half the population of Arizona now believes marijuana should be legal for adults to use, just as it is in Colorado, surveys show. While unlicensed pot dealers may never be fully tolerated under the law, just as those who sell booze without a liquor license can get into trouble with authorities, they arguably don't always deserve to be treated to a "tactical response."
Though Wheelihan was white, was selling marijuana possibly in violation of Arizona law, and may have wielded his pellet gun provocatively, the heavy-handed tactical response by police that preceded the shooting can be examined in a similar light as the deaths of Freddie Gray in Baltimore and Michael Brown in Ferguson, Missouri. All three suspects may have been initially suspected of a crime, but their deaths could have been avoided by a different approach by police.
A neighbor of Wheelihan's interviewed by New Times certainly believes so. She says she felt comfortable sending her grand kids over to Wheelihan's to play with his kids and thought he was a responsible parent. Finding out that he ran a pot-delivery business didn't change her mind about his untimely death.
"This was overkill," the neighbor says of the raid, her eyes brimming with tears as she stood in her doorway. "Couldn't they have shot him in the leg?"
Wheelihan's mother, Ellin Wheelihan of Illinois, says she's since studied the 2014 book by Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces." She's skeptical of the official police story. John used the pellet gun to scare away birds from a vegetable garden in the backyard, and she can't imagine why he'd try to scare police with it.
"He wasn't what you'd think a drug dealer would be," Ellin Wheelihan says. "He was a family man and a good husband. He came back every couple of months to see [his parents.]
Ellin Wheelihan says the family still is reeling from John's death, that her life was transformed by the incident. Heartbroken and desperate for answers, Ellin wandered into the garden of a local Catholic church in Illinois days after the shooting. She was later baptized and has been active in the church ever since.
Last week, a new report showed that Arizona was a leading state for police shootings in 2013 and 2014.
Next year, voters will likely have the chance to grant adults over age 21 the right to possess up to an ounce of pot legally under state law. Anything under 2.5 ounces but more than an ounce would be punishable only by a civil fine.
Someone like Wheelihan, with 11 pounds of marijuana packaged for sale, would still face potential felony charges and felony drug raids if Arizona voters approve the legalization measure.
But police need to further re-evaluate — as they may be doing now — whether a SWAT-team raid on a non-violent marijuana dealer is the most appropriate and politically palatable course of action.
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